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Sue and Settle: Regulating Behind Closed Doors
What is Sue and Settle?
"Sue and Settle" refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process. The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties. These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties. As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups. These cases resulted in settlement agreements and EPA publishing more than 100 new regulations - including the Clean Power Plan.
UPDATE – Sue and Settle Practice to End: On October 16, 2017, EPA Administrator Scott Pruitt issued a directive to end “sue and settle” practices within the EPA. The directive and accompanying memo includes new policies and procedures to increase transparency, public engagement, and accountability. Major changes include providing advance notice to the public of any notice of intent to sue or proposed settlement agreement, allowing the public to weigh in on proposed or modified consent decrees and settlements, and to exclude attorney fees and litigation costs when settling with suing parties. The directive incorporates recommendations and research conducted by the U.S. Chamber of Commerce, which can be found in the May 2017 “Sue and Settle Updated: Damage Done 2013-2016” report.
Database of Settlements: In August 2017, the U.S. Chamber of Commerce received a Freedom of Information Act request response from the Department of Justice's Environmental and Natural Resources Division with a database listing all Clean Air Act, Clean Water Act, and Endangered Species Act settlements between January 20, 2009 and January 19, 2017. The database of settlements, which is accessible HERE, is divided in three sections: (1) Environmental Defense, (2) Environmental Enforcement, (3) Wildlife. Additionally, in October 2017, the Chamber received a FOIA request response from the EPA including Clean Air Act and Clean Water Act settlement agreements and consent decrees from between 2015 and 2016.
Recent Notices of Intent to Sue on EPA's Website
|11/13/2017||EPCRA, Ironbound Community Corporation |
NOI pursuant to section 326(d) of the Emergency Planning and Community Right-to-Know Act against EPA, New Jersey and the New Jersey State Emergency Response Commission for failure to provide public access to the comprehensive emergency response plan that covers Newark, New Jersey.
|11/6/2017||CWA, Menominee Indian Tribe of Wisconsin |
Alleges that U.S. Army Corps of Engineers and U.S. EPA violated mandatory duties by failing to exercise jurisdiction and regulatory atuhority over the Menominee River and adjacent wetlands.
|11/1/2017||CWA, ESA, Protect Our Water |
NOI from Protect Our Water alleging EPA failed to reinitiate ESA consultation on approval of Texas' NPDES permitting program authorization.
|10/30/2017||CAA, State of New York |
Regarding EPA’s obligation to promulgate FIPs for Illinois, Michigan, Pennsylvania, Virginia, and West Virginia addressing the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.
For a full list of EPA's Notices of Intent to Sue, visit http://www.epa.gov/ogc/noi.html.
What is New in Sue and Settle?
- 10/31: Washington Examiner | Good Riddance to the 'Sue and Settle' Regulatory Process
- 10/27: AP | Advocacy groups: EPA response to Erie algae bloom lawsuit bolsters argument
- 10/25: The Hill | House Passes Bill to Curb Sue-and-Settle Regulation
- 10/25: Law 360 | Enviros Sue DOI for Emails from Oil, Hunting Groups
- 10/24: The National Law Review | EPA Releases “Sue And Settle” Policy Directive
- 10/16: Fox News | EPA's Pruitt Moves to End Obama-Era Practice of 'Sue and Settle' with Environmentalists
- 10/10: WSHU | Schneiderman to Sue EPA Over Clean Power Plan Repeal
- 10/9: Daily Caller | EPA Threatened With Lawsuits Over Repealing Obama’s Global Warming Rule
- 10/9: NWI | Environmental Group Threatens to Sue EPA Over Coke Permit
- 10/5: Washington Post | Interior Department to Officially Reexamine Sage Grouse Protection Plan
- 10/3: NRDC | NRDC Lawsuit Against EPA Challenges Neonic Pesticide Registrations (press release)
- 10/2: C&EN | Activists Sue Over Revamped U.S. Chemical Law
See all -- Sue and Settle News Archive
What are the Economic Implications of our Findings?
Interactive List of All Sue & Settle Cases
Also see this alternate table, which lists court cases resolved by agency action in response to legal challenges.